The Necessity of Public Advocacy in the Law

JURIST Guest Columnist Leonard Baynes of St. John's University School of Law says that in order for a lawyer to be an effective advocate for their client and for social justice, they must advocate to the public as well as the courts. He demonstrates this by introducing a series of articles written by his students which will run on JURIST over the next several weeks...

Charles Hamilton Houston, a former dean of Howard University School of Law, one of the grand architects of the legal strategy behind the Civil Rights Movement, and a teacher of Supreme Court Justice Thurgood Marshall, once declared that "a lawyer is either a social engineer or a parasite." Houston meant that a lawyer could either comfortably earn a living by sometimes profiting from a client's troubles, or a lawyer could use his or her law degree to change the world for the better. At St. John's University School of Law, through a course called Perspectives on Justice offered exclusively to the second-year staff of the Journal of Civil Rights and Economic Development, we are educating students to use legal scholarship to change the world. Over the coming weeks, JURIST will be publishing several of the journal staffers' opinion pieces in a ten part series. In these articles, you will see that the students are strong advocates for interpreting the law to further social justice.

To change the world, a lawyer has to effectively advocate for her client. It does not matter whether the lawyer is a litigator or transactional lawyer. A lawyer needs to be committed to the issues that she represents, and this commitment will help the lawyer to find her inner voice and passion.

Lawyers are most effective when they can break an issue down into clear-cut issues of right and wrong, and they sometimes need to rally public opinion to see this perspective. We have seen this most recently with the actions of Kenneth Thompson, the lawyer representing the hotel housekeeper Nafissatou Diallo, who accused Dominique Strauss-Kahn, the former head of the International Monetary Fund, of sexual assault and attempted rape. Certain issues about Diallo's background surfaced, causing prosecutors to question her veracity. As a consequence, Thompson took to the airwaves defending and advocating for his client. In an unprecedented move, he has disclosed his client's identity to the media and made her available to media query. Thompson described Diallo's situation in stark terms of injustice: "Ms. Diallo now brings this lawsuit to vindicate her rights, to assert her dignity as a woman ... and to stand up for all women who have been raped, sexually assaulted and/or abused throughout the world but who are too afraid to speak out."

Although Thompson's media advocacy has not stopped New York prosecutors from dropping Diallo's case, he still maintains his client's right to justice. He has declared that the New York prosecutor "has abandoned an innocent woman and has denied an innocent woman a right to get justice in a rape case ... and by doing so, he has also abandoned other women who will be raped in the future or sexually assaulted." Thompson's continued advocacy has managed to paint a competing and more sympathetic image of his client that will be useful for the upcoming civil lawsuit based on the same allegations. In addition, Thompson's advocacy has had two other salient effects. First, it persuaded another alleged victim in France to come forward charging Strauss-Kahn with similar conduct; and, second, it has changed the conversation in France about the morality of behaviors like those alleged.

Like Thompson, lawyers have had a long tradition of using the media for the purposes of influencing an individual case or advocating for larger social justice issues contained within it. Through op-eds, opinion pieces that appear opposite the editorial page in newspapers, lawyers are able to reach and affect a wider audience. Op-eds draw the readers' attention to an important issue in need of a solution and provide the author's perspective on the problem and his or her solution to it. Charles Hamilton Houston wrote over 100 op-eds during his twenty-five year legal career. Many were published during pending litigation; most were in African American newspapers as well as in the mainstream media.

Similarly, other lawyers who are social justice activists have written op-eds to influence public opinion and illustrate the significance of the issues they are litigating. For instance, Anthony Romero, Executive Director of the American Civil Liberties Union, and Terry Pell, the President of the Center for Individual Rights, co-authored an op-ed that appeared in the Wisconsin State Journal, which discussed the Morse v. Frederick case where a student displayed a banner stating "Bong Hits 4 Jesus" during the Olympic Torch Relay in Alaska. The student was suspended and then sued the school district arguing that his First Amendment rights were violated. The co-authors are particularly noteworthy because they come to the issue from opposing ideological perspectives, but they were both of the opinion that the ban on speech and subsequent suspension violated the First Amendment. They stated: "The First Amendment is central to the American spirit. It is part of what makes us who we are as a people." As President of the National Organization of Women, Kim Gandy wrote a number of op-eds. In USA Today in 2007, she wrote an op-ed entitled "End the Discrimination," where she powerfully advocated for the full enforcement of Title IX to end the gender stereotypes that women were not suited for the study of math and science. Each of these advocates recognized the power of informing the general public about these complex legal issues. Although judges do not decide legal cases based on popular opinion, they are conscious of how their decisions may play out in the larger context. In making a decision on a controversial subject, a judge often wants to make sure that his or her decision is not too far outside the mainstream, that it is not overturned by legislation, and that it is ultimately enforceable. Although judges may not be unduly influenced by public opinion, legislatures, administrative agencies and prosecutors are ultimately beholden to the people. In these circumstances, that is where informing and rallying the public to a cause is likely to have the most currency.

At St. John's University School of Law, we designed a special one-year, three-credit course called Perspectives on Justice specifically for the second year staff of the Journal. As part of the course, the students learn about critical theory and significant legal issues of racial, social, and economic justice by principally reading assignments from Emma Coleman Jordan's and Angela Harris's course book, "Economic Justices: Race, Gender, Identity and Economics" and from other sources. We assign these readings to ensure that the students are grounded in current theory and law about these complex social issues. We encourage students to use the readings as a "jumping off" point for their research and writing.

The course is co-taught by three faculty members, with the assistance of three notes and comments editors, who work with the students to identify the legal and social justice issues present in cases of first impression. Under the supervision of a faculty member, each student is required to write a twenty-three page research paper, a five-page blog, and a 1,000-word opinion piece focusing on issues of racial, social, and economic justice. We require these three forms of writing for quite traditional reasons. We want the students to have experience in taking a research and writing project and turning it into three different versions for three different audiences. In practice, this is the kind of experience that is often de rigueur for young lawyers, i.e., writing three different memoranda, one for the supervising attorney, another for the judge, and yet another for the client. Given the topics, our wrinkle of the practical aspect of writing gives students an opportunity to advocate passionately in a short opinion piece to a mainstream audience by calling attention to a socially significant legal problem or issue.

The staff members of the Journal of Civil Rights and Economic Development wrote the opinion pieces in this series while they were second year law students. They have written on a wide range of topics involving issues as diverse as the intersection of criminal justice and national security, the legality of a patient's choosing health care providers by race, the viability of national high school exit exams, and the Federal Communications Commission's regulation of unexpected cell phone charges, just to name a few. We are very proud of their accomplishments and encourage you to read their articles in the series and enjoy them.

Leonard Baynes is Professor of Law and the inaugural Director of The Ronald H. Brown Center for Civil Rights and Economic Development at St. John's University School of Law. He teaches Business Organizations, Communications Law, Regulated Industries, and Race and the Law. Professor Baynes is a nationally recognized communications law scholar, specializing in race and media issues. Baynes previously served as a law clerk to Judge Clifford Scott Green in the US District Court for the Eastern District of Pennsylvania.

The Journal of Civil Rights and Economic Development, formerly known as the Journal of Legal Commentary, is the second oldest law journal at St. John's University School of Law. It was started in 1985, by St. John's Law Review students who wanted to write legally important and socially relevant law review articles. In 2007, it became the official publication of the Ronald H. Brown Center for Civil Rights and Economic Development.

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